THIRD SECTION

Application no. 11867/09 Arp á d SOLT É SZ against Slovakia lodged on 13 February 2009

STATEMENT OF FACTS

1. The applicant, Mr Arpád Soltész , is a Slovak national, who was born in 1969 and lives in Košice .

He is represented before the Court by Ms I. Rajtáková , a lawyer practising in Košice .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

2. The applicant is an editor, at the relevant time with a daily A., published by B.

The article and its background

3. In 1997 an individual, C., disappeared. He was the head of a municipal office and an entrepreneur. Although it does not concern the facts of the present case directly, C. has never been found and he was later judicially pronounced dead.

4. In May 2001 the applicant obtained information concerning the disappearance of C. from D., who at that time was the Director of Criminal Police at a Regional Directorate of Police Corps. D. confirmed that information on 29 May 2001 in writing before a notary public in the following terms:

“I have heard a recording of an eavesdropped telephone conversation of the evening when the head of the municipal office in [ ... ], [C.] disappeared. At that time I was the Director of Criminal Police at the Regional Directorate of Police Corps in [ ... ] and I directly took part in the search for the missing [C.]. The recording contained the voice of [E.], who was calling from [a restaurant] to a hotel [ ... ] and announced that [C.] was already on the way. We have not been able to establish who took the call because, later on, the recording just like other evidence has been removed from the file. Right at the beginning of the investigation, we were visited by [ ... ], at that time the deputy to the director of the Slovak Intelligence Service, who declared that [C.] was dead and that the investigation was over.”

5. On 16 June 2003 an article written by the applicant was published in A. under the title “An industrialist of [a town] has never been found”.

6. The article drew a parallel between the case of C. and the disappearance of another entrepreneur. In so far as relevant, the article contained information suggesting that C. had disappeared after a business meeting with E. and other persons and that E. was the local representative of an investment house and of its representatives. The article also described the circumstances of the disappearance and contained the following passage:

“The editorial office of [A.] moreover has in its possession a written testimony by one of the policemen, who took part in the search for [C.]. ‘ I have heard a recording of an eavesdropped telephone conversation of that evening. [E.] called from [a restaurant] to a hotel ... and announced that [C.] was already on the way. We have however not been able to establish who took the message and, later on, the recording just like other evidence has been removed from the file. ’ , submits the former policeman who took part in the search for [C.]. [E.] dropped [C.] off his car in front of [a factory] and [C.] has never been seen since by anyone who would be willing to confess to that. The tape with the recording probably no longer exists nowadays. ‘ The next day came the then director of counter-espionage at [the Slovak Intelligence Service] ... , seized the recording. He said that [C.] was dead and that the investigation was over. ’ , alleges the policeman.”

7. On 4 August 2003 E. lodged an action against the publisher, B., with the Poprad District Court ( Okresný súd ), relying on Articles 11 et seq. of the Civil Code (Law no. 40/1964 Coll., as amended) and Article 8 of the Convention, asserting protection of personal integrity, and claiming the equivalent of approximately 120,000 euros (EUR) in damages.

The principal argument was that the article contained untrue, incomplete and misleading information, in particular as regards the alleged representation by E. of the interests of another entity, the calling and informing by E. about the movement of C., the business background of the meeting, and the general tenor of the article implying that E. might have got to do with the disappearance of C.

8. On 27 July 2004 the District Court admitted the applicant to the proceedings as the second defendant of the action, following an application by E. to that effect at a hearing held the previous day.

9. Further hearings were held on 18 February and 8 April 2005 and 19 April, 30 May, 20 October and 15 December 2006. At these hearings, the parties, their representatives and a number of witnesses were heard, including D., who acknowledged knowing and having spoken to the applicant before the publication of the article and having provided him with information concerning the investigation into the disappearance of C. However, D. could not recall the information provided to the applicant in any detail. D. confirmed having been directing the investigation and taken part directly in some of the interviews. In so far as he should have told to the applicant that E. had called and informed about the movement of C., this had been unofficial information that D. had obtained from the then deputy director of the Slovak Intelligence Service (“the SIS”). The latter had not been a member of the investigative team and had provided D. with that information off the record. The investigators had been looking into that matter but the SIS had not compared notes, as a result of which the allegation that E had called and informed on the movement of C. could neither have been confirmed nor disproved. D. could not recall whether he had heard a recording of the alleged call or seen its transcript but he did not exclude it and admitted that some transcripts had been in the case file. As to the involvement of the then deputy director of the SIS, D. had had the impression as if the former had wanted to orient the investigation in a certain direction. When asked how the voice of E. in the alleged call had been identified, D. replied that the call had been analysed by officers having local knowledge who had presented that information to him and he had taken it for trustworthy.

10. Following the hearing last mentioned, on 15 December 2006, the District Court determined the action, but its judgment was modified following the applicant ’ s appeal by the Prešov Regional Court ( Krajský súd ) on 20 February 2008, the judgment of which became final and binding 14 April 2008.

11. The proceedings in respect of the publisher, B., were discontinued because, in their course, B. had been dissolved and struck out of the Companies ’ Register.

12. The applicant was ordered to pa y E. the equivalent of some EUR 3 ,000 by way of damages, plus legal fees, and the remainder of the claim was dismissed.

13. The courts pointed out that the information provided by D. to the applicant concerning the alleged call by E. had been unofficial and unconfirmed. With reference to a report by the Head Office of the Police, the courts also observed that the investigation file concerning the disappearance of C. did not contain and had not contained any transcripts of eavesdropped phone calls and any incoming and outgoing telecommunication records. The courts concluded, therefore, that the information was untrue.

14. Furthermore, the courts held that, irrespectively of the source of published information, the author of an article was responsible for the truthful content of the published information and this responsibility was not discharged by quoting the information and referring to its source. This responsibility was to be construed as an objective responsibility and issues such as intent, negligence, and the source of the information in essence played no role. As the applicant had published the information obtained from D. without verifying it, he was liable for that published information ’ s not being true.

15. On 18 June 2008 the applicant lodged a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended), alleging a violation of his rights under Article 10 of the Convention.

The applicant argued, in particular, that the information in the article concerning the alleged call by E. was a statement of fact, made in quotation marks and with a general reference to the source. It was as such truthful because the editorial office of A. did have at its disposal the information quoted. Moreover, in view of the official function of D., the applicant should not have had any legitimate doubt about that information ’ s being true.

16. On 3 June 2008 the Constitutional Court ( Ústavný súd ) declared the complaint inadmissible as being manifestly ill ‑ founded. It held that a general court could not bear “secondary liability” for a violation of fundamental rights and freedoms of a substantive nature unless there had been a violation of procedural rules. As no violation of any procedural rule had been alleged, there could not have been a violation of the invoked substantive provision either.

B. Relevant domestic law

17. The relevant domestic law has been summarised in, for example, Ringier Axel Springer Slovakia , a.s . v. Slovakia (no. 41262/05 , §§ 53 et seq., 26 July 2011) and Ringier Axel Springer Slovakia, a.s . v. Slovakia (( dec .), no. 35090/07, 4 October 2011).

COMPLAINTS

18. The applicant complains of a violation of his rights under Article 10 of the Convention on similar grounds as asserted before the Constitutional Court .

19. The applicant also complaints of a violation of his rights under Article 13 of the Convention in that the Constitutional Court has denied him an effective remedy against the judgment of the Regional Court, the latter bearing “primary liability” for the alleged violation of the applicant ’ s rights under Article 10 of the Convention.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to freedom of expression, in particular his right to impart information, contrary to Article 10 of the Convention?

In particular, to what extent are the duties and responsibilities inherent in the applicant ’ s profession relevant to his claim and the State ’ s margin of appreciation in this field?

Have the domestic courts applied standards which were in conformity with the principles embodied in Article 10 of the Convention and have they based themselves on an acceptable assessment of the relevant facts (see Ringier Axel Springer Slovakia, v. Slovakia , no. 41262/05 , § 109, 26 July 2011, with further references )?

2. In view of the rejection by the Constitutional Court of the applicant ’ s complaint under Article 127 of the Constitution, did the applicant have at his disposal an effective domestic remedy for his complaint under Article 10 of the Convention, as required by Article 13 of the Convention?